John Asuquo Etim V. The Registered Trustees of the Presbyterian Church of Nigeria (2003)
LawGlobal-Hub Lead Judgment Report
RAPHAEL OLUFEMI ROWLAND, J.C.A.
This is an appeal against the order of Emilia Ibok, J. made on 19th day of December, 2000 at the High Court of the Cross River State of Nigeria holden at Calabar, wherein she granted an order of interlocutory injunction in favour of the plaintiff now respondent.
In the writ of summons filed on 8th day of December, 2000, the plaintiff/respondent prayed the court as follows:
“1. A declaration that plaintiff is entitled to the statutory right of occupancy grantable by the Governor of Cross River State over the piece or parcel of land lying and situate at Big Qua Town, Calabar formerly occupied by one Mr. Alfred O. Olaiya, on the permission of the plaintiff and referred to as No. 18 Big Qua Town Road, or any part thereof.
2. An order of perpetual injunction restraining the defendant, his workmen, agents, servants, assigns, or privies from erecting any structure or continuing with any construction work on the piece or parcel of land known as No. 18 Big Qua Town Road, or any part thereof.
3. The sum of N500, 000.00 (five hundred thousand naira) only being damages for trespass”.
The above writ of summons was also filed together, on the same day, with a motion on notice for interlocutory injunction to restrain the appellant from erecting anything on the disputed land pending the determination of the substantive suit. The said application for interlocutory injunction was slated for hearing on the 19th day of December, 2000.
As borne by the records, the defendant/appellant was not personally served with the aforementioned processes until the 14th day of December, 2000 almost seven days after filing. See page 28 of the record of proceedings. The days following the date of the personal service on the appellant were public holidays and a weekend and so, on the 1st day of December, 2000, the appellant’s solicitors filed a memorandum of appearance. See page 29 of the records. On the 19th day of December, 2000, when the motion on notice was fixed for hearing, the appellant’s counsel sent in a letter applying for the motion on notice to be adjourned due to previously scheduled matters. See page 30 of the record of proceedings.
As borne by the records the Registrar of the trial court duly acknowledged the receipt of the letter. Notwithstanding the said application for adjournment by the appellant’s counsel, the respondent’s counsel moved the lower court and the learned trial Judge, after bearing the argument on the respondent’s motion on notice for interlocutory injunction restraining the appellant even without hearing him in opposition. See pages 36 to 38 of the records.
Being dissatisfied with the order of the learned trial Judge in granting the said application for interlocutory injunction without having heard from him, the appellant has now appealed to this court as per the notice and grounds of appeal set out at pages 39 to 41 of the records.
From the grounds of appeal the appellant raised three issues for determination.
They are:
“1. Whether the appellant was accorded a fair hearing or hearing at all before the application of the respondent for the grant of interlocutory injunction was granted.
2. Whether in the circumstances of this case the learned trial Judge ought not to have considered and granted an adjournment to the appellant to file his counter affidavit to the respondents application for interlocutory injunction.
3. Whether the trial court can grant an interlocutory injunction on 19th December, 2000 when both the writ of summons and the application for interlocutory injunction served on the appellant on 14th December, 2000 required the appellant to enter appearance within 8 days.”
The respondent also formulated three issues for determination.
They are:
“(i) Whether the learned trial Judge gave the appellant an opportunity to be heard before hearing and determining the application for interlocutory injunction?
(ii) Whether in the circumstances of the case the learned trial Judge exercised her discretion properly in proceeding with the matter?
(iii) Whether an order of injunction can only be granted after the date limited in the writ of summons for entering appearance has expired?”
Apart from semantics, it goes without saying that the three issues formulated by the parties are one and the same thing.
On issue NO.1 in the appellant’s brief it was submitted for the appellant that on the 19th day of December, 2000 the learned trial Judge heard arguments solely from the respondent’s counsel and several legal authorities were cited before her in support of the application for interlocutory injunction. Reference was made to pages 36 to 37 of the records. It was submitted that the learned trial Judge having heard the respondent’s counsel on the application granted the interlocutory injunction. It is manifest from the ruling that the learned trial Judge anchored the ruling of the court on the allegation that the appellant had been served without more.
It was submitted that the absence of the appellant and his counsel was explained through a letter to the court. Section 36(1) of the 1999 Constitution was cited and relied upon. It was contended that the laws frowns on ex parte orders granted at the back of a party especially where the appellant will be kept in that position without being heard or without deciding the merit of the interlocutory injunction.
Learned counsel for the respondent argued issues Nos. 1 and 2 in the respondent’s brief together. It was submitted that issues Nos. 1 and 2 are related and therefore could be argued together and they relate to grounds 1 and 2 of the grounds of appeal. It was argued that the crux of the submission of learned counsel to the appellant is that the order of interlocutory injunction granted by the learned trial Judge on 19/12/2000 was granted ex parte, without giving the appellant an opportunity to be heard. He maintained that the trial court failed to consider the appellant’s case merely because he was absent. It submitted that counsel for the appellant relied heavily on the authority of Kotoye v. CBN (1989) 1 NWLR (pt. 98) 419, (1989) 1 N.S.C.C. 238; (1989)All NLR 76 in contending that the injunction was granted ex parte and should therefore be set aside for breach of the rule of fair hearing.
It is the contention of the learned counsel for the respondent that the authorities cited by counsel to the appellant are good law but none of them avails him as they are inapplicable to the present case. It was stated that the learned trial Judge was satisfied with the fact that appellant was duly served with the processes in the case including the motion on notice before entertaining it.
Reference was made to page 37 lines 25 – 28 of the records. It was submitted that the appellant was put on notice before the learned trial Judge granted the interlocutory injunction. It is therefore the contention of the respondent that opportunity was granted the appellant to be heard when he was put on notice but he refused to come to court to be heard.
It is manifest from the records that on the 19th day of December, 2000 the learned trial Judge heard arguments solely from the respondent’s counsel and several legal authorities were cited before the court in support of the application for interlocutory injunction.
See pages 36 to 37 of the records. The respondent’s application can be found at pages 16 to 27 of the records. The learned trial Judge having heard the respondent’s counsel on the application said:
“… and being convinced by virtue of the affidavit of service of 14/12/2000 filed by one Odo Ekpo Archibong, Chief Bailiff that the defendant was served with the processes in this case including the said motion on notice, I hereby order as follows:
“That an interlocutory injunction be and is hereby granted, restraining the defendant/respondent, his workman, agents, servants, assigns and privies from erecting any structure or continuing with any construction work on the piece of land formerly occupied by the late Mr. Alfred O. Olaiya known as No. 18 Big Qua Town Road, Calabar or any part there of pending the determination of the substantive suit”.
From the above, it is patently clear that the learned trial Judge anchored the ruling of the court strictly and merely on the fact that the appellant had been served without more. It seems to me that the learned trial Judge jettisoned all the known principles of law governing the grant of interlocutory injunctions which is that the other side must be given the opportunity to be heard in opposition to the said application. Hearing to my mind cannot be deemed to be fair if a court, as was done in this case, decides a case on the evidence of one of the parties alone while ignoring the evidence of the other side.
In the case of Gever v. China (1993) 9 NWLR (Pt. 315) 97 at 106 Katsina-Alu, J.CA. (as he then was) held as follows:
… A situation where a party’s case is not considered on the ground that he was absent in court, in the circumstances of this case, is totally unwarranted.”
The above statement of Honourable Justice Katsina-Alu holds good for this case. It must be mentioned at this point in time that the absence of both the appellant and his counsel was explained in a letter written to the court as borne by the records. It must also be pointed out that a mere absence of the appellant from the court on the day fixed for hearing of the respondent’s application for interlocutory injunction did not mean that he had no defence to offer.
It seems to me therefore that the learned trial Judge was in error both in law and equity in granting an interlocutory injunction behind the back of the appellant without even setting down the said application for hearing and determination. The act of the learned trial Judge to my mind goes contrary to the laid down principles of fair hearing. Section 36(1) of the 1999 Constitution clearly provides that whenever the need arises for the determination of the civil rights and obligation of every Nigerian, the person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law.
Thus fair hearing in the con of section 36(1) of the 1999 Constitution encompasses fair hearing in the narrow technical sense of the twin pillar of justice, that is, audi alteram partem and nemo judex in causa sua, as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. In the instant case, the interlocutory application of the respondent could only have been granted once the appellant was also heard.
Doing otherwise runs counter to the letter and spirit of section 36 of the 1999 Constitution because the order by its very nature depends on the resolution of the contentious issues raised. Under Order 33 rule 1(1) and (2) of the Cross River State High Court Procedure Rules, 1987, there is no provision whatsoever for the lower court to grant an interlocutory injunction ex parte except in cases of extreme urgency. There was no extreme urgency in this matter. It seems to me that an interlocutory injunction strictly means an injunction granted after due contest between the parties and to last until the final determination of the main suit and such applications are properly made on notice to the other party to keep matters in status quo until the determination of the suit. This is distinct from an interim injunction which is to preserve the status quo until a named date or until a further order, or until an application on notice can be heard, and they are for cases of real urgency.
The law frowns on ex parte orders granted at the back of a party especially where the appellant will be kept in that position without being heard or without deciding the merit of the interlocutory injunction. Thus, in Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419; (1989) 1 N.S.C.C. 238 at 252 Nnaemeka-Agu, J.S.C. held:
“This is the way I see the dicta of Griffith, C. J. in Thomas Edison Ltd. v. Bullock (1912) 1 SCLR 679 at p. 681 which Chief Williams has cited in argument. The learned C. J. said:
“There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence …”
I entirely agree with him. But there is nothing in the above dicta or in the case itself to warrant the hearing of an interlocutory application for injunction ex parte, indeed this court sounded much the same caveat per Ibekwe, J.S.C. (as he then was) when he stated in Woluchem v. Wokoma (1974) 1 All NLR (Pt. 1) 605 at 607.
“An interlocutory injunction has a binding effect until it is discharged. Failure to comply with it could lead to disastrous consequences, such as having to commit the offending party to prison for contempt. It is a well settled rule of practice in civil proceedings that the party to be affected by the order sought should normally be put on notice.”
In view of section 36(1) of the 1999 Constitution the lower court could not have deliberated on the contentious issues and come to conclusions on ex parte hearing or without hearing the appellant.
See Adigun v. Attorney-General, Oyo State (1987) 1 NWLR (Pt. 53) 678 at 709; Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628, (1996) 2 SCNJ 172 at 184.
I now move on to issue No.2 in the appellant’s brief which is one and the same thing as issue No.2 in the respondent’s brief.
It was submitted for the appellant that on the day the said application for interlocutory injunction was fixed for argument before the learned trial Judge, the learned counsel for the appellant wrote a letter dated 19th December, 2000 asking for an adjournment to enable him react on behalf of the appellant, to the application for interlocutory injunction. See page 28 of the records.
It was contended that the trial court ignored the letter and proceeded to hear the motion in the absence of the appellant’s counsel and the appellant himself. The court was duly informed of the application for adjournment but refused same, and went on to hear the motion behind the appellant. It was argued that the refusal to grant an adjournment was injudicious. It was submitted that the appellant was denied hearing altogether in circumstances that led to miscarriage of justice.
For the respondent, it was conceded that the right to fair hearing is entrenched in section 36(1) of the 1999 Constitution, breach of which completely vitiates the entire trial. Reference was made to the case of Adigun v. A-G., Oyo State (1987) 1 NWLR (Pt. 53) 678 at 709. It was conceded also that it is a cardinal principle of law that where a party is entitled to be heard before a decision is given in a case before the court, that party should be given an opportunity to be heard and present his case before the court. The case of NEPA v. Eze (2001) 3 NWLR (Pt. 701) 606 at 618 – 619 was cited and relied upon.
But it was argued that the rule of fair hearing is not a technical doctrine, it is one of substance. Therefore, where there is a cry of the breach of fair hearing as in the instant case, it is the duty of the court to examine the proceedings to ascertain whether there is a breach.
Reference was made to the case of Kotoye v. CBN (supra). It was contended that the appellant was given the opportunity to be heard when he was put on notice. It was stated that the appellant was served with all the processes but he refused to come to court to be heard, therefore he cannot injustice and fairness complain of a denial of fair hearing.
I hold the view that it is the law that while an application for adjournment is made to a court, the court should bear in mind the requirement that justice should be done to both parties and that it is in the interest of justice that the hearing of the case should not be unduly delayed. It should grant it, if the refusal of the application is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. In Yisi (Nig.) Ltd. v. Trade Bank Plc. (1999) 1 NWLR (pt. 588) 646, this Honourable Court sitting at the Kaduna Division, held, in a similar case where the lower court refused the application of a counsel for adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power. The lower court, when confronted by an application for an adjournment as was the case here, ought to have exercised its discretion judiciously and judicially.
Notwithstanding the application before the court for an adjournment, the learned trial Judge refused to acknowledge the existence of such an application. It seems to me that this refusal is not only untenable but also manifestly unsupportable.
This court also held in Owena Bank (Nig.) Plc. v. Muhammed (1998) 1 NWLR (Pt. 533) 301 at 307 – 308 per Ogebe, J.C.A. that:
“It is a well known principle of law that the question of an adjournment of a matter is entirely within the discretion of a trial court … The question of whether or not a matter should be adjourned or continued must always be decided judicially and judiciously, the exercise must not be capricious or made in such a way that injustice would result to either party”. In the circumstances of this case, I hold the strong view that the learned trial Judge could have even adjourned the matter without a formal application from the appellant for adjournment in the interest of justice. As the matter as borne by the records was coming up before the learned trial Judge for the first time, there really was no hurry to hear it especially taking into consideration the fact that she had earlier refused the respondent’s application ex parte.
It seems to me that refusing to adjourn the matter and granting the respondent’s application for interlocutory injunction was arbitrary and a denial of a fair hearing to the appellant.
In Bamawo v. Garrick (1995) 6 NWLR (Pt. 401) 356 at 367 368, this Honourable Court also held that where an adjournment is sought by a party to a case, the application must first be resolved before a decision is reached as to whether or not to proceed with hearing of the matter.
Doing otherwise would mean violating the principle of fair hearing as enshrined in section 36(1) of the 1999 Constitution without giving the patry seeking for adjournment the opportunity of stating his own case. Order 8 rule 6 of the High Court (Civil Procedure) Rules, 1987 provides as follows:
“The hearing of any motion may from time to time be adjourned upon such terms as the court may think fit.”
From the above authorities, I have no doubt in my mind that the appellant’s constitutional right to a fair heating was violated by a refusal by the learned trial Judge to first consider the application for adjournment before proceeding to hearing the respondent’s application.
The final issue for determination in this appeal is issue No.3 reproduced supra. It was submitted by learned counsel for the appellant that the appellant was served with the writ of summons together with the motion on notice on 14th December, 2000. See page 28 of the records. It was further submitted that the writ of summons directed that appearance be entered within eight days after service. It was stated that the appellant’s counsel entered appearance on 18th December, 2000, that is the fifth day after service. Reference was made to page 29 of the records. It was contended that the respondent’s motion on notice came up for hearing on the 19th December, 2000, that is the sixth day after appellant was served, wherein the learned trial Judge heard arguments in support of the application for and granted an order of interlocutory injunction against the appellant.
Issue No.3 in the respondent’s brief is similar to issue No.3 in the appellant’s brief which relates to ground 3 of the appellant’s grounds of appeal. For the respondent on issue No.3, it was submitted that the appellant agreed that he was served with the writ of summons together with the motion on notice on 14th December, 2000.
Reference was made to page 28 of the records. He entered appearance 5 days thereafter on 18th December, 2000. It was contended that the motion was fixed for hearing on the 6th day of the service of the processes on him, that is, 19th December, 2000. According to the appellant, it was submitted, he still had two days that is, up to 21st December, 2000 to come to court to contest the motion on notice since the writ of summons allows him 8 days to enter appearance. It is the contention of the respondent that learned counsel for the appellant contended on behalf of the appellant that the interlocutory injunction granted by the trial court before the 8 days limited in the writ of summons for entering appearance was granted without jurisdiction and thus null and void.
In respect to issue No.3 in both briefs, it is my view that the answer to the problem of jurisdiction posed is contained in the case of Ita v. Nyong (1994) 1NWLR (pt. 318) S6 at page 72 where Uwaifo, J.C.A. (as he then was) had this to say:
“I think it was sufficient that the defendant had been served with the writ of summons and the application for interlocutory injunction. The fact that he defaulted in entering an appearance by filing a memorandum of appearance cannot deprive the court of jurisdiction to entertain the application. The memorandum of appearance is simply to indicate that the suit will be contested. But the application for an interlocutory injunction following the service of the writ of summons is another court process which will succeed or fail on its merit and not on whether a memorandum of appearance has not been entered even though it is undisputed that the defendant has been served both processes.”
See Dike v. Union Bank Ltd. (1987) 4 NWLR (Pt. 67) 958.
From the above authority, I do not agree with the learned counsel for the appellant that the lower court had no jurisdiction to make the order it made until the expiration of the eight days stated in the writ of summons. In the final analysis, this appeal is meritorious and it is therefore allowed. I discharge the order of interlocutory injunction granted by the lower court on 19th December, 2000. I award 5,000.00 costs in favour of the appellant against the respondent.
Other Citations: (2003)LCN/1442(CA)